St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1887-11-23
Statement Of Law on Which
the Interior Department
Will Act.
Prospects for Postal Telegra.
phy--About the Fisheries
Conference.
A Cabinet Meeting--A Suit for
Libel--Genepal Wash
ington Notes.

WASHINGTON, Nov. 22.-The follow
ing important opinion was made public
to-day:
Department of Justice. Washington,
Nov. l7.-To the Secretary of the In
terior-Sir: BY your letter of Oct. Is,
1887. YOU submit three questions for my
opinion. They arise upon the cOnstruc-
ton of sections 8, 4 and 5 of the Act of
the Sd of March, 1887, which, as shown
by its title. as whole. was passed Ito
provide for the adjustment OF land
grants made by congress, to aid III the
construction of railroads, and for the
forfeiture of unearned lands, and for
other purposes" ga U. S. Statute, 556.).
The first section of the act directs the
adjustment of the grants. The second
section provides for the restoration of
title to the United States, where lands
have been enormously certified or pat
ented to the railroads. The third sec
ton is, That, if in the adjustment of
said grants, it shall appear that the
homestead or pre-emptiOn entry
OF any bona fide settler has been
enormously cancelled on account OF
any railroad grant, or the with
d~iwal of public lands from market,
each settler, upon application, shall be
reinStated in all his rights and allowed
to perfect his entry by complying with
the public land laws: provided. that he
h I, not located another claim, or made
an entry in lieu of the one so errOn-
eousIy cancelled; and provided, also,
that he did not voluntarily abandon
said original entry; and provided
further, that if any of said settlers do
not renew their application to be rein
stated within a reasonable time, to be
fixed by the secretary of the interior,
then ali such unclaimed lands shall be
disposed of under the public land laws,
WITH PRIORITY OF RIGHT
given TO bona fide purchasers OF said
unclaimed land, if any, and if there be
40 such purchaser. then to bona fide
.ttiers residing thereon" The ques-
tista submitted under this section is,
What class of purchasers IS referred
,obY the expression 'bona >fide purchas-
eYs OF said unclaimed land? Three
classes OF persons are provided for
under this section.
First-Bona fide settlers whose home
stead or pre-emptiOn entries have been
erroneouSly Cancelled on account of
railroad grant or withdrawal.
Second-BOna fide purchasers OF such
unclaimed lands.
Third-BOna fde settlers residing
thereon. The rights of the several
classes to the lands referred to in the
section are successive, i'll the order
stated in the section. The first in right
is the homestead or pre-emption settler,
whose entry has been wrOngfully can
cclled. If he elects to assert his rights,
and has not been disqualified by locat-
ing another claim, or making another
entry in lieu of the entry enormously
Cancelled, his right is absolute, and the
successive rights Of the remaining two
classes cannot attach II he lawfully as
sarts his claim. If he fail to claim the
land. or is disqualified under the act,
the second class of persons, who are the
bona iide purchasers of the land un-
claimed by him, attach. and have pre-
cedence over the third class. The bona
tide purchasers here referred to are
those who, without knowledge of wrong
or error. have purchased from the rail-
road company lands which had been
previously entered by pre-emptiOn or
homestead settler whose entry had
been enormously Cancelled, and which
land the pre-emptiOn or homestead
settler did not elect to claim after the
recovery by the proceedings prescribed
by the second section of the act.
The second question submitted by you
is: "Can the department, after adjust
ment of the grant by the department.,
issue patent to the purchaser of such
land before the said land has been re-
conveyed by the road. or title recovered
by judicial proceedings? The second
section declares that the mode to finally
determine whether the lands shall have
been enormously certified or patented
shall be by the admission of the COM
pany and reconveyance, or. in case of
dispute, by judicial proceedings. Until
the, lands shall have been legally ue-
termined to belong to the United States,
the right to issue patents under the
fourth section does not arise. If pat
ents should issue under the fourth Sec
ton before reconveyance or Judicial re-
coyery under the second, and proceed
ings should then be instituted to cancel
the patent issued to the railroad, i'll case
Of decision adverse to the government
in the proceeding instituted, two pat
elits .wonld be outstanding at the same
time for the same land. But the express
words of the section with reference to
the time when the patent shall issue
are: The person or persons so pur-
chasing in good faith shall be entitled
=
respectively shall have been adjusted"
THE THIRD QUESTION
is as follows: ''Third-The fifth section
of said act provides that where rail
road company has sold lands not con-
lrved 10 OF for the use of such COM
panv. and where such lands are for any
reason excepted from the operations of
the grant of said company, it shall be
lawful for the bona tide purchaser
thereof from said company to make
paVment 10 the United States for said
land. and thereupon patents shall issue
therefor 10 the said bona fide purchaser,
or his heirs or assigns" The question
submitted under this section is whether
the proviso last above quoted is confined
in its application to lands within the
primary granted limits, or whether it
applies 10 land within the indemnity
limits of which the company has made
selection, but which has not been ap-
rgoyed 10 #. The first section of the act.
In the use of the word grant must
have necessarily included both the pri-
mary and indemnity limits in the adj
Iustment. As it was doubtless intended
that the adjustment should be full and
final one. The lands which, under the
adjustment, were found not to be the
property of the railroad, were intended
to nc free from the cloud of claim by the
railroad, and restored to the public do
main for disposition according to law.
The intent of the act shows that to
carry out its purposes the word grant"
wherever used in the second, third and
fourth sections, must include the lands
III both primary and indemnity limits.
as each directly, OF by necessary impli-
cation, refers to the adjustment provided
r.. =, ,l,o ,;..t ..aotion Tho nrofactian